From Feudalism to Consent : Rethinking Birthright Citizenship

It is today routinely
believed that under the Citi­zenship Clause of the Fourteenth
Amendment, mere birth on U.S. soil is sufficient to obtain U.S.
citizen­ship. However strong this commonly believed
inter­pretation might appear, it is incompatible not only with
the text of the Citizenship Clause (particularly as informed by the
debate surrounding its adoption), but also with the political
theory of the American Founding.

It is time for Congress
to reassert its plenary authority and make clear, by resolution,
its view that the "subject to the jurisdiction" phrase of the
Citizen­ship Clause has meaning of fundamental importance to
the naturalization policy of the nation.

The Original
Understanding of the Citizenship Clause

The Citizenship Clause
of the Fourteenth Amend­ment provides that "All persons born or
naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein
they reside."[1] As manifest by the con­junctive "and,"
the clause mandates citizenship to those who meet both of the
constitutional prerequi­sites: (1) birth (or naturalization) in
the United States and (2) being subject to the jurisdiction of the
United States.

The widely held, though
erroneous, view today is that any person entering the territory of
the United States-even for a short visit; even illegally-is
considered to have subjected himself to the juris­diction of
the United States, which is to say, sub­jected himself to the
laws of the United States. Surely one who is actually born in the
United States is therefore "subject to the jurisdiction" of the
United States and entitled to full citizenship as a result, or so
the common reasoning goes.

Textually, such an
interpretation is manifestly erroneous, for it renders the entire
"subject to the jurisdiction" clause redundant. Anyone who is
"born" in the United States is, under this interpre­tation,
necessarily "subject to the jurisdiction" of the United States. Yet
it is a well-established doc­trine of legal interpretation that
legal texts, includ­ing the Constitution, are not to be
interpreted to create redundancy unless any other interpretation
would lead to absurd results.[2]

The "subject to the
jurisdiction" provision must therefore require something in
addition to mere birth on U.S. soil. The language of the 1866 Civil
Rights Act, from which the Citizenship Clause of the Fourteenth
Amendment was derived, provides the key to its meaning. The 1866
Act provides: "All persons born in the United States, and not
subject to any foreign power, excluding Indians not taxed, are
hereby declared to be citizens of the United States."[3] As
this formulation makes clear, any child born on U.S. soil to
parents who were temporary visitors to this country and who, as a
result of the foreign citizenship of the child's par­ents,
remained a citizen or subject of the parents' home country was not
entitled to claim the birth­right citizenship provided by the
1866 Act.

The jurisdiction clause
of the Fourteenth Amendment is somewhat different from the
juris­diction clause of the 1866 Act, of course. The
pos­itively phrased "subject to the jurisdiction" of the United
States might easily have been intended to describe a broader grant
of citizenship than the negatively phrased language from the 1866
Act, one more in line with the modern understanding. But the
relatively sparse debate we have regarding this provision of the
Fourteenth Amendment does not support such a reading.

When pressed about
whether Indians living on reservations would be covered by the
clause since they were "most clearly subject to our jurisdiction,
both civil and military," for example, Senator Lyman Trumbull, a
key figure in the drafting and adoption of the Fourteenth
Amendment, responded that "subject to the jurisdiction" of the
United States meant subject to its "complete" juris­diction,
"[n]ot owing allegiance to anybody else."[4] And Senator Jacob Howard, who
introduced the language of the jurisdiction clause on the floor of
the Senate, contended that it should be construed to mean "a full
and complete jurisdiction," "the same jurisdiction in extent and
quality as applies to every citizen of the United States now"[5] (i.e.,
under the 1866 Act). That meant that the children of Indians who
still "belong[ed] to a tribal relation" and hence owed allegiance
to another sovereign (however dependent the sovereign was) would
not qualify for citizenship under the clause. Because of this
interpretative gloss, provided by the authors of the provision, an
amendment offered by Senator James Doolittle of Wisconsin
explicitly to exclude "Indians not taxed," as the 1866 Act had
done, was rejected as redundant.[6]

The interpretative
gloss offered by Senators Trumbull and Howard was also accepted by
the Supreme Court-by both the majority and the dis­senting
justices-in The Slaughter-House Cases.[7] The majority in that
case correctly noted that the "main purpose" of the clause "was to
establish the citizenship of the negro" and that "[t]he phrase,
'subject to its jurisdiction' was intended to exclude from its
operation children of ministers, consuls, and citizens or
subjects of foreign States born within the United States."[8]
Justice Steven Field, joined by Chief Justice Chase and Justices
Swayne and Brad­ley in dissent from the principal holding of
the case, likewise acknowledged that the clause was designed to
remove any doubts about the constitu­tionality of the 1866
Civil Rights Act, which pro­vided that all persons born in the
United States were as a result citizens both of the United States
and of the state in which they resided, provided they were not at
the time subjects of any foreign power.[9]

Although the statement
by the majority in Slaughter-House was dicta, the position
regarding the "subject to the jurisdiction" language advanced there
was subsequently adopted as holding by the Supreme Court in Elk
v. Wilkins.[10] John Elk was born on an Indian
reservation and subsequently moved to non-reservation U.S.
territory, renounced his former tribal allegiance, and claimed U.S.
citizenship by virtue of the Citizen­ship Clause. This Court
held that the claimant was not "subject to the jurisdiction" of the
United States at birth, which required that he be "not merely
subject in some respect or degree to the jurisdiction of the United
States, but completely subject to their political jurisdiction, and
owing them direct and immediate allegiance."[11] Elk did not meet
the jurisdictional test because, as a mem­ber of an Indian
tribe at his birth, he "owed imme­diate allegiance to" his
tribe and not to the United States. Although "Indian tribes, being
within the territorial limits of the United States, were not,
strictly speaking, foreign states," "they were alien nations,
distinct political communities," accord­ing to the Court.[12]

Drawing explicitly on
the language of the 1866 Civil Rights Act, the Court
continued:

Indians born within the
territorial limits of the United States, members of, and owing
immediate allegiance to, one of the Indian tribes (an alien though
dependent power), although in a geographical sense born in the
United States, are no more "born in the United States and subject
to the jurisdiction thereof," within the meaning of the first
section of the fourteenth amendment, than the children of subjects
of any foreign government born within the domain of that
government, or the children born within the United States, of
ambassadors or other public ministers of foreign nations.[13]

Indeed, if anything,
American Indians, as mem­bers of tribes that were themselves
dependent upon the United States (and hence themselves subject to
its jurisdiction), had a stronger claim to citizenship under the
Fourteenth Amendment merely by virtue of their birth within the
territorial jurisdiction of the United States than did children of
foreign nationals. But the Court in Elk rejected even that
claim and in the process necessarily rejected the claim that the
phrase, "subject to the jurisdiction" of the United States, meant
merely territorial jurisdiction as opposed to complete, political
jurisdiction.

Such was the
interpretation of the Citizenship Clause initially given by the
Supreme Court, and it was the correct interpretation. As Thomas
Cooley noted in his treatise, "subject to the jurisdiction" of the
United States "meant full and complete jurisdic­tion to which
citizens are generally subject, and not any qualified and partial
jurisdiction, such as may consist with allegiance to some other
government."[14]

The Supreme Court's
Wrong Turn in Wong Kim Ark

Despite the clear
holding of Elk and the persua­sive dicta from
Slaughter-House that mere birth on U.S. soil is not
sufficient to meet the constitutional prerequisites for birthright
citizenship, the Supreme Court held otherwise in United States
v. Wong Kim Ark,[15] with expansive language even more broad
than the holding of the case itself. It is that erroneous
interpretation of the Citizenship Clause, adopted 30 years after
the adoption of the Fourteenth Amendment, that has colored basic
questions of citizenship ever since.

In Wong Kim Ark,
Justice Horace Gray, writing for the Court, held that "a child born
in the United States, of parents of Chinese descent, who at the
time of his birth were subjects of the emperor of China, but have a
permanent domicile and resi­dence in the United States," was,
merely by virtue of his birth in the United States, a citizen of
the United States as a result of the Citizenship Clause of the
Fourteenth Amendment.[16] Justice Gray cor­rectly noted that
the language to the contrary in The Slaughter-House Cases
was merely dicta and therefore not binding precedent.[17] He
found the Slaughter-House dicta unpersuasive because of a
subsequent decision, in which the author of the majority opinion in
Slaughter-House had con­curred, holding that foreign
consuls (unlike ambassadors) were "subject to the jurisdiction,
civil and criminal, of the courts of the country in which they
reside."[18]

Justice Gray appears
not to have appreciated the distinction between partial,
territorial jurisdiction, which subjects all who are present within
the terri­tory of a sovereign to the jurisdiction of that
sover­eign's laws, and complete political jurisdiction, which
requires allegiance to the sovereign as well.

More troubling than his
rejection of the persua­sive dicta from Slaughter-House,
though, was the fact that Justice Gray also repudiated the actual
holding in Elk, which he himself had authored. After quoting
extensively from the opinion in Elk, including the portion,
reprinted above, noting that the children of Indians owing
allegiance to an Indian tribe were no more "subject to the
jurisdic­tion" of the United States within the meaning of the
Fourteenth Amendment than were the chil­dren of ambassadors and
other public ministers of foreign nations born in the United
States, Justice Gray simply held, without any analysis, that
Elk "concerned only members of the Indian tribes within the
United States, and had no tendency to deny citizenship to children
born in the United States of foreign parents of Caucasian, African,
or Mongolian descent, not in the diplomatic service of a foreign
country."[19]

By limiting the
"subject to the jurisdiction" clause to the children of diplomats,
who neither owed alle­giance to the United States nor were (at
least at the ambassadorial level) subject to its laws merely by
virtue of their residence in the United States as the result of the
long-established international law fic­tion of
extraterritoriality by which the sovereignty of a diplomat is said
to follow him wherever he goes, Justice Gray simply failed to
appreciate what he seemed to have understood in Elk, namely,
that there is a difference between territorial jurisdiction, on the
one hand, and the more complete, alle­giance-obliging
jurisdiction that the Fourteenth Amendment codified, on the
other.

Justice Gray's failure
even to address, much less appreciate, the distinction was taken to
task by Justice Fuller, joined by Justice Harlan, in dissent.
Drawing on an impressive array of legal scholars, from Vattel to
Blackstone, Justice Fuller correctly noted that there was a
distinction between the two sorts of allegiance-"the one, natural
and perpet­ual; the other, local and temporary."[20]
The Citizen­ship Clause of the Fourteenth Amendment referred
only to the former, he contended. He noted that the absolute
birthright citizenship urged by Justice Gray was really a lingering
vestige of a feudalism that the Americans had rejected, implicitly
at the time of the Revolution and explic­itly with the 1866
Civil Rights Act and the Four­teenth Amendment.[21]

Quite apart from the
fact that Justice Fuller's dis­sent was logically compelled by
the text and his­tory of the Citizenship Clause, Justice Gray's
broad interpretation led him to make some astoundingly incorrect
assertions. He claimed, for example, that "a stranger born, for so
long as he continues within the dominions of a foreign government,
owes obedience to the laws of that government, and may be punished
for treason."[22] And he was compelled to recognize dual
citizenship as a neces­sary implication of his position,[23]
despite the fact that ever since the Naturalization Act of 1795,
"applicants for naturalization were required to take, not simply an
oath to support the constitu­tion of the United States, but of
absolute renuncia­tion and abjuration of all allegiance and
fidelity to every foreign prince or state, and particularly to the
prince or state of which they were before the citizens or
subjects."[24]

Finally, Justice Gray's
position is incompatible with the notion of consent that underlay
the sover­eign's power over naturalization. What it meant,
fundamentally, was that foreign nationals could secure American
citizenship for their children merely by giving birth on American
soil, whether or not their arrival on America's shores was legal or
illegal, temporary or permanent.

Justice Gray stated
that the children of only two classes of foreigner nationals were
not entitled to the birthright citizenship he thought guaranteed by
the Fourteenth Amendment.

First,as noted above, were
the children of ambassadors and other foreign diplomats who, as the
result of the fiction of extraterritoriality, were not even
considered subject to the territorial juris­diction of the
United States.

Secondwere the children of
members of invad­ing armies who were born on U.S. soil while it
was occupied by the foreign army. But apart from these two narrow
exceptions, all children of foreign nationals who managed to be
born on U.S. soil were, in Justice Gray's formulation, citizens of
the United States. Children born of parents who had been offered
permanent residence but were not yet citizens, and who as a result
had not yet renounced their allegiance to their prior sovereign,
would become citizens by birth on U.S. soil. This was true even if,
as was the case in Wong Kim Ark itself, the parents were, by
treaty, unable ever to become citizens.

Children of parents
residing only temporarily in the United States on a student or work
visa would also become U.S. citizens. Children of parents who had
overstayed their temporary visas would like­wise become U.S.
citizens, even though born of parents who were now in the United
States ille­gally. And, perhaps most troubling from the
"con­sent" rationale, even children of parents who never were
in the United States legally would become citizens as the direct
result of the illegal action by their parents. This would be true
even if the par­ents were nationals of a regime at war with the
United States and even if the parents were here to commit acts of
sabotage against the United States, at least as long as the
sabotage did not actually involve occupying a portion of the
territory of the United States. The notion that the framers of the
Fourteenth Amendment, when seeking to guaran­tee the right of
citizenship to former slaves, also sought to guarantee citizenship
to the children of enemies of the United States who were in its
terri­tory illegally is simply too absurd to be a credible
interpretation of the Citizenship Clause.

Although hard to
sustain under the broad lan­guage used by Justice Gray, the
actual holding of Wong Kim Ark is actually much more narrow,
and the case need not be read so expansively as to pro­duce
such absurd results. Because of the Chinese Exclusion Acts,[25]
Wong Kim Ark's parents were ineligible for citizenship even if they
had renounced their Chinese citizenship and subjected themselves to
the exclusive jurisdiction of the United States. As such, Wong Kim
Ark arguably would have been entitled to citizenship because, like
his parents, he would in fact have been "sub­ject to the
jurisdiction" of the United States in the complete,
allegiance-obliging sense intended by the phrase.[26]

This is not to say that
Congress could not, pur­suant to its naturalization power,
choose to grant citizenship to the children of foreign nationals.[27]
But thus far it has not done so. Instead, the lan­guage of the
current naturalization statute simply tracks the minimum
constitutional guarantee- anyone "born in the United States, and
subject to the jurisdiction thereof," is a citizen.[28]
Indeed, Congress has by its own actions with respect to Native
Americans-both before and after this Court's decision in Wong
Kim Ark-rejected the claim that the Citizenship Clause itself
confers citi­zenship merely by accident of birth.[29]
None of these citizenship acts would have been
neces­sary-indeed, all would have been redundant- under the
expansive view of the Citizenship Clause propounded by Justice
Gray.

A Citizenship of
Consent, not Feudal Allegiance

Once one considers the
full import of Justice Gray's language in Wong Kim Ark, it
becomes clear that his proposition is simply incompatible not only
with the text of the Citizenship Clause, but with the political
theory of the American Found­ing as well.

At its core, as
articulated by Thomas Jefferson in the Declaration of Independence,
that political theory posits the following: Governments are
insti­tuted among particular peoples, comprised of
nat­urally equal human beings, to secure for themselves certain
unalienable rights. Such gov­ernments, in order to be
legitimate, must be grounded in the consent of the governed-a
nec­essary corollary to the self-evident proposition of
equality.[30] This consent must be present, either
explicitly or tacitly, not just in the formation of the government,
but also in the ongoing decision whether to embrace others within
the social com­pact of the particular people. As formulated in
the Massachusetts Bill of Rights of 1780:

The end of the
institution, maintenance, and administration of government, is to
secure the existence of the body-politic, to protect it, and to
furnish the individuals who compose it with the power of enjoying
in safety and tranquility their natural rights…. The
body-politic is formed by a voluntary association of individuals;
it is a social compact by which the whole people covenants with
each citizen and each citizen with the whole people that all shall
be governed by certain laws for the common good.[31]

Thus, as Professor
Edward Erler has noted:

[T]he social contract
requires reciprocal consent. Not only must the individual consent
to be governed, but he must also be accepted by the community as a
whole. If all persons born within the geographical limits of the
United States are to be counted citizens-even those whose parents
are in the United States illegally- then this would be tantamount
to the conferral of citizenship without the consent of "the whole
people."[32]

In other words,
birthright citizenship is contrary to the principle of consent that
is one of the bed­rock principles of the American
regime.

Such a claim of
birthright citizenship traces its roots not to the republicanism of
the American Founding, grounded as it was in the consent of the
governed, but to the feudalism of medieval England, grounded in the
notion that a subject owed perpetual allegiance and fealty to his
sover­eign.[33] A necessary corollary of the feudal
notion of citizenship was the ban on expatriation, embraced by
England and described by Blackstone as follows:

Natural allegiance is
such as is due from all men born within the king's dominions
immediately upon their birth. For, immediately upon their birth,
they are under the king's protection…. Natural allegiance is
therefore a debt of gratitude; which cannot be forfeited, canceled,
or altered, by any change of time, place, or circumstance….
For it is a principle of universal law, that the natural-born
subject of one prince cannot by any act of his own, no, not by
swearing allegiance to another, put off or discharge his natural
allegiance to the former: for this natural allegiance was
intrinsic, and primitive, and antecedent to the other, and cannot
be divested without the concurrence act of that prince to whom it
was first due.[34]

Thus, when Congress passed as a companion to
the Fourteenth Amendment the Expatriation Act of 1868, which
provided simply that "the right of expatriation is a natural and
inherent right of all people, indispensable to the enjoyment of the
rights of life, liberty, and the pursuit of happi­ness," it
necessarily rejected the feudal birthright citizenship doctrine of
medieval England as fun­damentally incompatible with the
principles of the Declaration of Independence. As
Representa­tive Woodward of Pennsylvania noted on the floor of
the House of Representatives: "It is high time that feudalism were
driven from our shores and eliminated from our law, and now is the
time to declare it."[35]

Such remnants of
feudalism were rejected by our nation's Founders when they declared
to a candid world that they no longer owed allegiance to the king
of their birth. They were rejected again by the Congress in 1866
and by the nation when it ratified the Fourteenth
Amendment.

Reviving Congress's
Constitutional Power Over Naturalization

It is time for the
courts, and for the political branches as well, to revisit Justice
Gray's erroneous interpretation of the Citizenship Clause,
restoring to the constitutional mandate what its drafters actually
intended: that only a complete jurisdic­tion, of the kind that
brings with it a total and exclusive allegiance, is sufficient to
qualify for the grant of citizenship to which the people of the
United States actually consented.

Of course, Congress has
in analogous contexts been hesitant to exercise its own
constitutional authority to interpret the Constitution in ways
contrary to the pronouncements of the courts. Even if that course
is warranted in most situations so as to avoid a constitutional
conflict with a co-equal branch of the government, it is not
war­ranted here for at least two reasons.

First,as the Supreme Court
itself has repeat­edly acknowledged, Congress's power over
natu­ralization is "plenary," while "judicial power over
immigration and naturalization is extremely lim­ited."[36]
While that recognition of plenary power does not permit Congress to
dip below the con­stitutional floor, it does counsel against
any judi­cial interpretation that provides a broader grant of
citizenship than is actually supported by the Constitution's
text.

Second,the gloss that
has been placed on the Wong Kim Ark decision is actually
much broader than the actual holding of the case. Congress should
therefore adopt a narrow reading of the decision that does not
intrude on the plenary power of Congress in this area any more than
the actual holding of the case requires. Wong Kim Ark's parents
were actually in this country both legally and permanently, yet
were barred from even pursuing citizenship (and renouncing their
former allegiance) by a treaty that closed that door to all Chinese
immigrants. They were therefore as fully subject to the
jurisdiction of the United States as they were legally permitted to
be, and under those circumstances, it is not a surprise that the
Court would extend the Constitution's grant of birthright
citizenship to their children. But the effort to read Wong Kim
Ark more broadly than that, as interpreting the Citizenship
Clause to con­fer birthright citizenship on the children of
those not subject to the full and sovereign (as opposed to
territorial) jurisdiction of the United States, not only ignores
the text, history, and theory of the Citizenship Clause, but also
permits the Court to intrude upon a plenary power assigned to
Con­gress itself.

-John C. Eastman,
Ph.D., is Professor of Law at Chapman University School of Law and
Director of The Claremont Institute Center for Constitutional
Jurisprudence. This memorandum stems from an amicus brief
filed by the Center for Constitutional Jurisprudence in support of
respondents in Hamdi v. Rumsfeld.

[26]Cf. In re Look Tin
Sing, 21 F. 905, 907 (C.C. Cal. 1884) (Field, Circuit Justice)
(concluding that the American-born son of Chinese immigrants, who
had taken up permanent residence in the United States pursuant to a
treaty with China that rec­ognized the right of man to change
his home and allegiance as "inherent and inalienable," because he,
like his parents, was at the time of his birth subject to the
"exclusive" jurisdiction of the United States).

[29]See Act of July 15,
1870, 16 Stat. 361, ch. 296, § 10 (cited in Elk, 112
U.S., at 104) (extending the jurisdiction of the United States to
any member of the Winnebago Tribe who desired to become a citizen);
Act of March 3, 1873, 17 Stat. 632, ch. 332, § 3 (cited in
Elk, 112 U.S., at 104) (same offer of citizenship to members
of the Miami tribe of Kansas); Indian Citizenship Act of 1924, 43
Stat. 253, 8 U.S.C. § 1401(b) (granting citizenship to Indians
born within the territorial limits of the United
States).

[35]Congressional
Globe,
40th Cong., 2nd Sess., at 868 (1868); see also id., at 967
(Rep. Baily) (describing birthright citizenship as "the slavish
feudal doctrine of perpetual allegiance"); Wong Kim Ark, 169
U.S., at 707 (Fuller, J., dissenting) (describing the rule adopted
by the majority as "the outcome of the connection in feudalism
between the individual and the soil on which he lived, and the
allegiance due was that of liege men to their liege
lord").

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The view that mere birth on U.S. soil is sufficient to obtain U.S.citizenship is incompatible with the Citizenship Clause of theFourteenth Amendment and the political theory of the AmericanFounding. It is time for Congress to reassert its plenary authorityand make clear that the "subject to the jurisdiction" phrase of theCitizenship Clause has meaning of fundamental importance to thenaturalization policy of the nation.

Rep. Peter Roskam (R-IL) says it's "a great way to start the day for any conservative who wants to get America back on track."

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